INHERITANCE

MU S L I M & CA N A D I A N FA M I LY LAW S

CCMWCanadian Council Of Muslim Women

INHERITANCE

Equity Empowerment Equality

Empowerment Equality Equity

Equality Equity Empowerment

Equity Empowerment Equality

Empowerment Equality Equity

Equality Equity Empowerment

Equity Empowerment Equality

INTRODUCTIONThe Canadian Council of Muslim Women (CCMW)has published a series of booklets to help CanadianMuslim women make informed choices pertainingto family law in Canada.

These booklets provide comparative information aboutCanadian and Muslim family laws, particularly as theypertain to women’s rights. We hope the booklets willbe of assistance to, among others, Muslim women,professionals working with Muslim women in thefamily court system, students who would like toknow more about the topic and community-basedservices that assist women.

The material in this booklet is based on Muslim and Canadian Family Laws: A Comparative Primer,published by CCMW. Any errors that appear in the booklets are the sole responsibility of CCMW.

Those interested in finding out about the sourcesand validity of Muslim laws and legal opinionsreferred to in the booklets should consult Muslimand Canadian Family Laws: A Comparative Primer, ameticulously referenced publication. Laws in a publiclegal system are in a constant state of flux as they arechanged to adapt to the times. You are encouragedto verify that the information contained in the bookletsabout Canadian laws is current.

Both the booklets and the Primer are intended toprovide information only and should not be considereda substitute for legal advice

MUSLIM LAWS

QURAN AND THE HADÍTH

Muslims are guided in their daily lives by the Quranand the hadíth. The Quran is considered by Muslimsto be the word of God as sent down to the Prophet

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Muhammad. The Quran considers women as spiritually equal to men. Records of the sayings anddoings of the Prophet, called hadíth, or “anecdotes,”are a kind of secondary set of scriptures. Like theQuran, the sayings of the Prophet maintain respectfor women’s spirituality and for male-female relations.

THE LAWS AND THE ROLEOF INTERPRETATION

The commandments of God are known as sharia,the ideal “path” of life intended by God. However,there is disagreement among Muslims concerningthe correct approach to the laws and the position of women within it. This is because there is no onecodified “Muslim law.” Muslim law is a large bodyof work built up by many dedicated scholars throughthe centuries. There are various schools of thought,and each has its own interpretations and rules. Evenscholars within the same school may disagree on theexact details of the law.

MAIN SCHOOLS OF MUSLIMJURISPRUDENCE

There are four Sunnite schools of jurisprudence -Hanafite, Malikite, Shafiite and Hanbalite - and onemain Shiite school, the Jafri. Each of these has itsown interpretations and rules, and there is a varietyof legal opinions among the different schools. Attimes, scholars even within the same school disagreeon the exact details of the law.

RELIGIOUS AND LEGAL AUTHORITY

It is important that Muslim women keep in mindthat legal authority in Islam does not belong to anyone person or organization. According to Muslimlegal theory, the believers themselves choose the persons they think to be the most knowledgeable

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and pious to give them advice about the law. Andaccording to the Sunnites, this is counsel only, whichcan be rejected by a sincere conscience and mind.

TAKHAYYUR

Literally meaning “selection,” takhayyur as a legalconcept is perhaps best translated as “eclecticism.” It recognizes that individual Muslims may follow thelegal interpretation of any school of law or, indeed, ofany individual scholars within those schools. Underthe principle of takhayyur, Muslims are not boundto the schools of law they were born into or thatpredominate in the regions where they live.

REFORMISTS VS TRADITIONALISTS

The reformists believe that Muslim laws treating socialintercourse are meant to be constantly reinterpretedaccording to time and place so that they continue to reflect basic values in different kinds of societies.Reformists point out that the term used for law is fiqh,or “understanding,” indicating that it is a product ofthe human mind and therefore fallible. This falliblehuman understanding of God’s law, according to the reformists, is meant to be constantly questionedand revised.

Traditionalists, on the other hand, regard the rulesof the traditional law as fixed. They are likely toequate their understanding of law with sharia, theideal path of life intended by God. In the view oftraditionalists, the laws are a timeless reflection of anideal and divinely ordained pattern of social relations.

Muslims often hear the strong egalitarian voice oftheir religion and expect that all laws will have thatspirit. Muslims may assume that women’s rightssuch as divorce and alimony are clearly affirmed bylaw, but these are actually reformist ideas whichmany people strongly oppose.

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CANADIAN MUSLIM COMMUNITIES

Canadian Muslim communities are relatively newand diverse. They are in the process of developinginstitutions and defining their position as a minorityin a non-Muslim society. Fragmentation into manygroups with different backgrounds and practicesprecludes the development of a generally recognizedethic to which everyone can refer. We thus have a fluid situation in which a very wide range of views about Islam and its laws is being articulatedand debated.

MUSLIM LAWS IN CANADA

Relying on Muslim laws may be more perilous in Canada than in most Muslim countries. InMuslim countries, there are defined laws laid down by governments, and it is therefore possible to have a good idea of what rules will be applied to a particular case. In Canada, however, one may be faced with unfamiliar standards and rules.

If you are thinking of having your affairs regulatedin any way by Muslim laws, it would be wise toenquire beforehand about the kind of law involved.Will it be some version of the reformed law or thetraditional law of one school or another?

You may be able to judge what kind of approachwill be used by asking specific questions. For example,with regard to divorce: Do the persons with whomyou are dealing consider the quick triple divorcevalid? Do they believe that a woman has a right tosupport by her husband even after the three-monthwaiting period, and if so, for how long? With regardto inheritance, you might ask: Will my daughterhave to share her part of the family inheritance withher uncles? You can use these booklets to come upwith such questions and also compare the answersyou get with those found in Canadian law.

The information about Muslim laws in the followingpages is not definitive. It should be viewed as a startingpoint only.

CANADIAN LAWSIn Canada, the Canadian Charter of Rights andFreedoms specifically address equality rights of women.Canada is also a signatory of the Convention on theElimination of all Forms of Discrimination AgainstWomen (CEDAW) and of the International Covenanton Civil and Political Rights (ICCPR). Both thesedocuments provide equality-rights protection forwomen which take precedence over the right to religious freedom.

CASE LAW

Case law, or court decisions, further addresses the issue of women’s rights. Public court decisionsare required to conform with the Canadian Charterof Rights and Freedoms. Court decisions are amatter of public record and can be appealed to a higher court.

FAMILY LAW

Family matters are governed by a number of federaland provincial laws. Some matters relating to marriage,such as rules about who can marry whom, are a federal responsibility; others, such as the technicaladministration of marriage, are provincial. Divorceis regulated federally under the Divorce Act. Provinciallaws cover custody, access, child support, propertydivision, spousal support, restraining orders andchild protection. Inheritance is also a matter forprovincial regulation.

The names of the statutes vary from province toprovince, but the general issues covered are the same,and the overall approach is similar, although there

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are regional differences. These laws exist to assistfamilies and to provide minimum common standardsacross the country.

ACCESS TO JUSTICE AND LEGAL AID

Everyone involved in a family-law matter can usethe services of a lawyer to support and assist them.In an attempt to ensure that people without thefinancial ability to pay for their own lawyer can stillbe properly represented, the provinces have developedlegal aid plans. In Ontario, the legal aid plan is calledLegal Aid Ontario (LAO). Ontario’s model providessuccessful applicants with a certificate for coverage,and the person selects their own lawyer.

The financial criteria in Ontario are very limited.Eligibility is determined by a review of the person’sincome and expenses. LAO covers representation forcourt-based matters only. There is no legal aid availablein private dispute-resolution cases.

PRIVATE DISPUTE RESOLUTION

Many people prefer to resolve the issues arising fromthe end of their relationship outside the court system.However, in situations where there is an unequalbalance of power, private resolutions may not reflecteither the legal rights or the interests of the personwith less power.

Family-law disputes are privately resolved througheither mediation, arbitration or collaborative law.

There have been significant changes to the ArbitrationAct with respect to the arbitration of family-law disputes. Arbitration must be conducted exclusivelyin accordance with the law of Ontario or of anotherCanadian jurisdiction. Arbitration conducted underany other system of law, including religious law, is not considered “family arbitration” and is notenforceable in Ontario.

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DIFFERENCES BETWEEN ARBITRATIONAND MEDIATION

Arbitration is quite different from mediation, inthat the arbitrator, after listening to what each partyhas to say, will announce a decision (much as a judgedoes) in the case. The parties are bound to acceptthis decision – in fact, they have agreed to this beforebeginning the process. While arbitration is recognizedand enforced by the courts, mediation is informalcommunity-based counselling and is similar to “goodadvice,” which individuals are free to accept or reject.The changes in the law do not interfere with the rightof individuals to go to elders and religious institutionsfor advice and counselling. While mediation cancontinue, it will not have the sanction of the stateand will not be legally binding.

SAFETY-RELATED MATTERS

Although these booklets deal primarily with issuesof family law, it is important for women to knowthat criminal law provides some protection fromabusive spouses. Both restraining orders and exclusive-possession orders are important legal stepswomen can take to protect themselves from abusivepartners, especially during the early days of separation,when risk of violence often increases. Applicationfor a restraining order and/or for exclusive possessionof the home can be made as part of a larger courtproceeding dealing with custody, access, support and/or division of property or it can be made separately.

THE CANADIAN LEGAL SYSTEM

The Canadian legal system is a public legal systemwith laws and systems in place that are intended toensure women’s equality rights. Under this system,laws are open to public review and scrutiny and

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court decisions are a matter of public record.Moreover, the decisions can be appealed to highercourts. In Canada, anyone involved in court pro-ceedings has the right to have a lawyer representher/him. For those who cannot afford legal repre-sentation, government-funded legal aid is available.A public law system supports a consistent approachand some measure of equality and accountability.The system of law is not perfect.

Private rules, including religious laws, do not offerthese same protections. They are not open to publicreview and scrutiny, and those who interpret themare not accountable to the public in any way. Thereis often no right of appeal from a bad decision madeunder a private regime. There is not necessarily a rightto legal representation, and legal aid is never available.

For these reasons alone, a public system of familylaw is to be preferred over a private one.

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INHERITANCE

Muslim LawsIntroduction

According to Muslim laws, inheritance is distributed

among members of the extended rather than the nuclear

family. The nuclear family i.e., wife, husband and children

must share with more distant relatives, especially those

in the male line. Also, the heirs and the amounts given

to them are fixed and cannot be changed.

These features of the Muslim laws of inheritance have a

definite social rationale: they were intended to distribute

wealth fairly in a society in which the extended family

was the basic social unit and the source of social welfare.

Calculation of inheritance

Inheritance is distributed automatically after expenses

such as funeral costs and the deceased’s debts (including

any mahr due to a wife) have been paid. The heirs and

their shares are predetermined, and the shares are cal-

culated according to intricate mathematical formulas.

Inheritance calculations involve giving each heir a set

fraction of the estate, which is determined by how closely

the person is related to the deceased, the existence of

other heirs and whether the heir is male or female.

According to Quran 4:11, the wife or wives together gets

one-fourth of the husband’s estate if there are no children.

With children, including certain grandchildren, a wife gets

one-eighth. If the wife dies first, the husband, another

of the heirs specified in the Quran, takes one-half or

one-quarter of his wife’s estate, since males generally have

twice the share of females in the same class. Daughters

will receive the shares established in the verse, but if

there are sons, the sons share the inheritance with them

at the rate of twice what is given to the daughters.

Under traditional law, individuals can distribute one-

third of their property as they wish through a bequest,

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Canadian LawsIntroduction

The manner in which people can determine what happens

to their wealth after they die is governed in Ontario

primarily by the Succession Law Reform Act.

Individuals are free to leave instructions, via a will, to

have their property disposed of in any way they wish.

When one spouse dies and leaves a will, the surviving

spouse has the right to take the property as specified

in the will or to receive his/her entitlement under the

Family Law Act (section 6).

Calculation of inheritance

Individuals can have their property disposed of in

any way they wish through a will. There is no legal

requirement that a will be fair or treat people equally.

A husband can write his wife and children out of his will

if he chooses. However, if a person dies without making

adequate provision for his/her dependants, the court can

order a part of the estate to be used for the support of

the dependants.

(continued on next page)

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INHERITANCE

Muslim LawsCalculation of inheritance (continued)

so long as it is not given to an established heir. However,

if an established heir is given a bequest, the other heirs

must consent to it. Reforms introduced in some Muslim-

majority countries do not require the consent of the

other heirs.

Female half-share rule

The rule that the share of a daughter should be half that

of a son is probably the most controversial aspect of the

Muslim laws of inheritance. However, through a bequest

and by making gifts during one’s lifetime, it might be

possible to ensure that the wealth passed on to daughters

equals that of sons.

It is important to note that the half-share rule applies to

females and males in the same class (e.g., brother/sister,

husband/wife, and other combinations in which the heirs

are parallel in inheritance rights). A female’s inheritance

will not be automatically half that of all other males,

and may be more.

The aim of the Quran in establishing the half-share rule is

not to disadvantage females but to establish the principle

that females do inherit. By specifying their share, which

is to be determined first, along with that of other members

of the nuclear family, it ensures that they cannot be

passed over.

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Canadian LawsCalculation of inheritance

Female half-share rule

There is no such requirement in Canadian law.

(continued on next page)

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INHERITANCE

Muslim LawsFemale half-share rule (continued)

The half-share rule was put into the Muslim inheritance

system because society at the time expected women to

depend on male relatives to take care of them. By law,

such financial responsibility is given to men only.

Theoretically, a man must maintain not only his wife and

family but also other relatives in need whose priority is

set by the law. In theory, unmarried females are supported

by one or another of these relatives son, brother, father,

and so on.

Who may not inherit

Non-Muslims and stepchildren do not inherit. Since

Islam does not allow legal adoption, adopted children do

not receive inheritance shares from their adoptive parents.

Validity of the will

Since under Muslim laws inheritance is predetermined,

there is no requirement for a will.

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Canadian LawsFemale half-share rule

Who may not inherit

Anyone may be specified in a will to inherit all or part

of an individual’s property.

Since adoption is legal under Canadian law, adopted

children are considered as dependants and can also inherit.

Validity of the will

To be valid, a will must be in writing and be signed by

two witnesses. The exception to this rule is a will written

entirely by the testator in her/his own handwriting. A will

is revoked if the testator gets married or divorced, writes

a new will or gives written instructions to revoke the will.

International wills are recognized by Canada if they are

properly executed e.g., in writing and witnessed.

To order copies of the booklets please visitwww.ccmw.com or write to CCMW P.O. Box 154 Gananoque, ON, K7G 2T7, Canada

We gratefully acknowledge the Status of WomenCanada for the financial support which made possible the research and publication of this book.

The information on Muslim and Canadian familylaws in the booklet is provided in a side-by-side format to allow for comparison. Sometimes there is no direct comparison available. These situationsare noted as such.

This booklet is one in a series of six and should beread in conjunction with the others.

Titles in the series:

1) Domestic Contracts

2) Marriage

3) Divorce

4) Custody and Child Support

5) Family Property and Spousal Support

6) Inheritance